R. v. Kobsar (T.G.), (2004) 355 A.R. 136 (QB)

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 24, 2004
• Citations: (2004), 355 A.R. 136 (QB);2004 ABQB 235

R. v. Kobsar (T.G.) (2004), 355 A.R. 136 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. AP.022

Her Majesty the Queen (respondent/Crown) v. Tami Gay Kobsar (applicant/accused)

(030044622Q1; 2004 ABQB 235)

Indexed As: R. v. Kobsar (T.G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

March 24, 2004.

Summary:

The accused was charged with theft over $5,000 from her employer. The accused applied for an order staying the prosecution as constituting an abuse of process.

The Alberta Court of Queen's Bench refused a stay, but suppressed the confession contained in the agreement.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was charged with theft from her employer - At issue was whether, when a victim and an alleged perpetrator made a deal that there would be no police involvement or charges laid unless a default occurred, and reduced the deal to writing, the Crown was prevented from prosecuting - The Alberta Court of Queen's Bench held that there was no absolute rule and set out the following principles: 1) the court had a right and a duty at common law and under s. 7 of the Charter to prevent abuse of process; 2) a mere finding of inappropriate conduct would not dictate a stay because this most aggressive remedy was to be used sparingly (i.e., in the clearest of cases); 3) the impugned conduct had to shock the community's conscience and be so detrimental to the proper administration of justice that it warranted judicial intervention; 4) the party alleging abuse had to establish it on a balance of probabilities; 5) the utilization of the criminal courts for debt collection was to be frowned upon and could amount to an abuse warranting some remedy; and 6) abuse was more likely to be found, and a stay granted, where the police and prosecutors were involved in the impugned conduct - See paragraphs 44 to 48.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused allegedly stole funds from her employer, a company owned by her nephew - He indicated that if the money was returned there would be no need to "go outside the company" and turned the matter over to the company's manager - The accused signed an agreement that provided that "[The company] and [the accused] have agreed that no charges will be laid or police involvement as long as the monies are paid back as specified." - The agreement contained a confession - The manager met with police and gave them copies of the agreement and a $3,000 cheque given to the company in partial payment under the agreement - The accused did not make full payment under the agreement and she was prosecuted - The accused alleged that this was an abuse of process and sought a stay of proceedings - The Alberta Court of Queen's Bench found that there was no inappropriate conduct by the police, the Crown or the nephew - The police did not immediately press charges because they were waiting for the results of the company's forensic audit - The nephew's desire not to prosecute his aunt if she paid was reasonable, not sinister - While the agreement was inappropriate and had a coercive element to it, it was drafted early in the proceedings and did not affect the conduct of the case - The appropriate remedy was not a stay (too drastic a remedy), but to suppress the confession contained in the agreement.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 3157.4 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See both Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See both Civil Rights -Topic 3157.4 ].

Criminal Law - Topic 255

General principles - Abuse of process - Power of court - Re prevention and remedies - [See both Civil Rights - Topic 3157.4 ].

Cases Noticed:

R. v. Finn (D.M.) (1996), 139 Nfld. & P.E.I.R. 97; 433 A.P.R. 97; 106 C.C.C.(3d) 43 (Nfld. C.A.), affd. [1997] 1 S.C.R. 10; 207 N.R. 244; 148 Nfld. & P.E.I.R. 89; 464 A.P.R. 89; 112 C.C.C.(3d) 288, refd to. [para. 50].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 54].

R. v. Lyons (R.) (2000), 276 A.R. 331; 2000 ABQB 615, folld. [para. 56].

R. v. Liakas (2000), 144 C.C.C.(3d) 359 (Que. C.A.), refd to. [para. 58].

Counsel:

Gloria Grieco, for the applicant/accused;

Ian Fraser, for the respondent/Crown.

This application was heard on February 23 and 24, 2004, by Germain, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 24, 2004.